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Gun makers baffled by ATF criteria

Models OK’d on case-by-case basis

- The Washington Times - Monday, January 2, 2012

The Bureau of Alcohol, Tobacco, Firearms and Explosives is in charge of determining whether a gun model is legal, but the agency won't say much about its criteria.

Despite overseeing an industry that includes machine guns and other deadly weapons, ATF regulations for the manufacture of weapons are often unclear, leading to reliance on a secretive system by which firearms manufacturers can submit proposed weapons for testing and find out one at a time whether they comply with the law, critics say.

The ATF recommends that manufacturers voluntarily submit weapons for case-by-case determination. But those judgments are private and, it turns out, sometimes contradictory. Critics say nearly identical prototypes can be approved for one manufacturer but denied for another.

That process, known as "letter rulings," results in various findings about what makes a weapon. Program critics, including the ATF's former assistant director of criminal investigations, said one determination contended that a shoestring was a machine gun.

The letters are sent only to the person submitting the weapon, making it hard for other gun manufacturers, designers and dealers looking for guidance to make judgments about the agency's evolving interpretations of the federal code. That lack of publication also means that no one knows when the agency issues rulings at odds with similar cases.

'Definitely contradictory'

Robert E. Sanders, an ATF official for 24 years who is now a North Carolina lawyer specializing in firearms matters, said letter rulings are often "definitely contradictory and inconsistent," but are necessary because the regulations being applied are ill-defined.

"It is hard to tell what ATF wants you to do without submitting your product and asking for a letter ruling," he said. "You can't tell what the agency has said in the past to others, because those letter rulings are generally secret. How could somebody know how to comply with the law?"

Mr. Sanders also serves as one of 75 members of the National Rifle Association's board of directors.

The letters come from the agency's Firearms Technology Branch, which tests weapons and related equipment that are submitted voluntarily for compliance rulings.

Mr. Sanders said that submitting a weapon for testing is a "costly and lengthy process" that would not be necessary if the ATF wrote detailed regulations. For example, he said, there are no written regulations on how to modify a machine gun made before a ban went into effect in 1986.

He noted that ATF once issued a letter ruling saying a 14-inch shoestring was a machine gun because it could be used to convert a semi-automatic rifle into an automatic weapon. The letter was later rescinded.

In other cases, the ATF has rescinded letter rulings and caused problems for those who had begun production or sales based on approvals. Contradictory rulings have cost gun manufacturers and dealers hundreds of thousands of dollars in spent and anticipated revenue.

Changes can be costly

Len Savage, a Georgia firearms designer and manufacturer, said what ATF allows and disallows "follows no rhyme or reason" and described the regulatory technique as "enforcement by ambush."

The owner of Historic Arms LLC, which makes and designs semi-automatic replicas of famous firearms, called the letters "worthless" because agency officials "can change their mind on a whim."

Mr. Savage said it is impossible to know what is compliant and that the ATF can spontaneously rescind approvals for any project.

He said the ATF told him in a July 2005 letter that he could convert machine guns legally owned by collectors into belt-fed weapons, but said in April 2006 that it was overturning its decision "upon reconsideration."

"It cost me $500,000 in orders," he said, adding that he was forced to destroy several weapons he had built because ATF would not grandfather them.

He said he had seen letters showing that two different companies submitted weapons for testing, with one declared legal and the other ruled illegal even though they were "dimensionally and operationally identical."

In its National Firearms Act Handbook, the ATF says manufacturers are not required to submit prototypes for testing, but they are "well advised" to do so "before going to the trouble and expense of producing it." The handbook says that asking for a letter ruling "is a good business practice to avoid an unintended classification and violations of the law."

The handbook also notes that "classifications are subject to change if later determined to be erroneous or impacted by subsequent changes in the law or regulations."

ATF spokesman Drew Wade declined to answer specific questions about letter rulings, citing ongoing litigation such as an Arizona criminal case in which the legality of modified weapons is at issue.

In a statement, he said only that the Firearms Technology Branch is the "federal technical authority" on weapons and their classification and that it provides assistance to the firearms industry and public by "responding to technical inquiries, and the testing and classification of products submitted."

Video documentation

Rep. Phil Gingrey, Georgia Republican, said the ATF's lack of "clear and straightforward guidelines" for firearm testing is a "serious problem."

"When the rules are subjective and continue to change, we cannot expect these business owners to comply with moving target regulations," he said in an email. "These inconsistent rulings from the bureau are confusing and result in a waste of time and resources."

On four occasions, Mr. Gingrey has unsuccessfully introduced the Fairness in Firearms Testing Act to require the ATF to make video recordings of its firearms tests. The bill is now before a House Judiciary subcommittee and the House Ways and Means Committee.

"Requiring the ATF to make video recordings of the testing and examination of firearms and ammunition — and allowing manufacturers access to the video documentation — will make it easier for manufacturers to contest and review testing decisions, bring consistency to the testing process, and leveling the playing field for the ATF and gun manufacturers, many of whom have been driven out of business by inconsistent and unfair testing procedures," Mr. Gingrey said.

Bill Akins, a Florida inventor, said the ATF initially approved his Akins Accelerator to increase the firing speed of semi-automatic rifles to simulate fully automatics, but later ruled the device illegal — leaving him with $500,000 worth of useless inventory.

In 2008, he filed a lawsuit against the ATF claiming the new ruling was arbitrary and capricious and violated his right to due process, an argument rejected by district and appellate courts.

"An ATF letter opinion is worthless," he said. "It is not law, and it can be changed at the whim of a bureaucrat."

Larry Keane, general counsel for the National Shooting Sports Foundation, said letter rulings can be "all over the map," particularly on the point in the manufacturing process when a piece of metal becomes a firearm subject to federal law.

He said the rulings are determined on "an ad hoc basis" and that it is nearly impossible to comply with the law with no clear definition from the ATF and varying interpretations from the courts.

"It is unfair for ATF to hold individuals to a standard that they cannot articulate themselves," he said.

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